STATES MUST MAKE PRESIDENTIAL ELECTIONS MORE SECURE

By Connie Reguli 1/6/23

Two portions of the December 29, 2022 Omnibus bill dealt directly with the presidential election, and the transition of presidential administrations.  The Electoral Count Reform Act makes some significant changes to Title 3 of the United States Code, and the Presidential Transitional Improvement Act of 1963 is modified to address any presidential candidate that does not concede the election.  

During the 2020 presidential election, an objection to the State’s electoral votes only required the signature of one Congressman and one Senator to be presented during the vote tally January 6.  The role call on the states is in alphabetical order, and as soon as an objection is received, the two Houses were required to withdraw to their own separate chambers and to consider the following: (1) the votes from the electors have been “regularly given”; and (2) only one certified result was received.  If both conditions were met, the electoral votes must be accepted. Both Houses could reject one or more electoral votes if the vote “has not been so regularly given” by electors even if they have been certified. 

However, if the Vice President received more than one set of votes from a State, a complex inquiry was required. If the returns had been certified by two different State authorities, and there was a challenge to which was the proper State authority, and that conflict had not been satisfied within the State; then, each House had to consider which was the proper State authority “under the laws of the State.”  If the two Houses disagreed, the electors certified by the “executive of the State” would be counted.  This complex inquiry left many questions.  The code did not describe which state official was considered the “executive of the State” or what was meant by “regularly given”.  

Under the Electoral Reform Act passed on December 29, 2022, this complex inquiry is totally removed and the events that occur on January 6, 2021 are unlikely to happen again.  First, the law now requires that objections contain signatures of one-fifth of the members of Congress and one-fifth of the members of the Senate. 

The law does not remove the opportunity for challenges. However, those challenges will need to occur in the States before January 6.  The law clarifies that the “executive of the State” is the governor.  So State certification will not be an act of the Secretary of State.  It must be certified by the governor and that certification will be conclusive in Congress.    Certification issues must be brought prior to January 6 in a State or Federal court.  All legal contests based on the U.S. Constitution or U.S. laws must be brought in a Federal court, assigned to a three judge panel, in the District where the State capitol is located, and heard on an expedited basis.  The panel will include two judges from the circuit court of appeals and one district court judge.  Any appeal taken from this judgment will be reviewed directly by the United States Supreme Court.  All of this must occur before the meeting of electors: the first Tuesday after the second Wednesday in December. So the only set of votes that can be officially transmitted are those signed by the governor.  

There are only two bases for objections.  The first is that the vote was not certified by the Governor.  The second is that the vote of one or more electors has not been “regularly given.”   Although the term “regularly given” was not previously defined and has long been the subject of legal debate, the reformed law describes “regularly given” as an appointment under the governor’s certificate.  

If a State is unable to certify its election results or a State appoints more than one set of electors, that State’s electoral votes shall not count on the January 6. 

In sum, what’s done is done.  The role of the Vice President is now a ministerial function and the burden is on the States to complete all election contests before the December meeting of the electoral college.  

Failure to concede a presidential election no longer carries any significance.  If the loser does not concede five days after the election, the Federal election Administrator can declare an apparent winner pending the final tally of the electoral votes on January 6.  The significance of that time period is that the transition act provides tax dollars prior to the inauguration to the winner. 

A legal question that has not been resolved is a State’s ability to sue another State for election irregularities.  In 2020, Texas filed a lawsuit against Pennsylvania in the United States Supreme Court citing election irregularities that corrupted the election results.  At least seventeen states either joined the lawsuit, filed amicus briefs, or publicly endorsed the case.  The arguments were based on Federalism.  The Presidential election is the only federal election in which the lack of election integrity in one state, such as mail-in ballots, electronic voting, and failure to purge voter rolls, would affect the voters in other states that had more stringent voting laws.  

The United States Supreme Court rejected the lawsuit and said that one state could not control the election process in another state.  We need a federal law which will secure the ability to challenge election integrity across state lines in a presidential election.  Ideally, we would also have federal election integrity laws which would eliminate electronic voting, absentee voting, mail-in ballots, and force state’s to purge voter rolls. 

Bottom line, the only power we have left is to preserve and protect our own conservative values in the State of Tennessee and find a way to support other states, especially the swing states of Pennsylvania, Georgia, Wisconsin, Arizona, and Nevada.  As conservatives, we have to step up our role in State government and help conservatives in our sister states. 

Follow me on Facebook, Instragram, and YouTube – @ConnieReguli